BANCROFT 
LIBRARY 

•o 

THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


D  K  E  S  S 


AMOS    KENDALL, 


TO    THE 


®s?  vmus 


THt 


HOUSE  OF  REPRESENTATIVES, 


IN  RELATION  TO  THE  CLAIM  OF 


AMOS  AND  JOHN  E.  KENDALL. 


WASHINGTON: 

PRINTED  BY  WILLIAM   GREEK. 

1854. 


£98 

•C5S 

X 


;>f  t  Lib! 

TO  EACH  MEMBER 


OF    THK 


UHTIilllllUIHUlimmiTIL 

Having  a  just  claim  of  great  importance  pending  before  the  two 
Houses  of  Congress  and  finding  it  impossible  to  explain  it  to  every 
member  in  person,  yet  desirous  that  every  member  shall  under 
stand  it,  I  take  the  liberty  earnestly  to  solicit  a  careful  perusal  of 
the  following  Address.  If,  as  I  am  persuaded,  you  shall  find  our 
claim  stronger  than  any  claim  for  French  or  Mexican  spoliations 
which  exists  now  or  ever  has  existed — a  claim  originating  in  a 
wrong  without  precedent  or  parallel  committed  by  the  government 
itself  on  its  own  citizens,  I  do  not  doubt  your  readiness  to  grant 
prompt  and  ample  redress.  The  government  is  always  the  same 
through  all  changes  of  men  who  administer  it ;  and  the  obligation 
of  those  who  now  hold  the  legislative  and  executive  powers  to  re 
dress  injuries  done  by  their  predecessors  in  their  official  character, 
is  as  strong  as  if  they  had  done  those  injuries  themselves. 

Hence  it  is  that  I  address  you. 

AMOS  KENDALL. 


ADDRESS. 

By  the  courtesy  of  the  Committee  on  Indian  Affairs  of  the  House 
of  Representatives,  Mr.  Kendall  was  allowed  to  attend  their  meeting 
for  the  purpose  of  explaining  his  views  of  the  claim.  Before  he  com 
menced,  Col.  Orr,  the  Chairman,  stated  to  him,  that  it  was  unneces 
sary  for  him  to  go  into  an  exposition  of  the  facts,  the  Committee 
being  satisfied  on  that  head ;  but  what  they  wanted  to  understand 
was,  the  grounds  upon  which  it  is  supposed  the  United  States  are 
bound  to  pay  the  claim. 

Mr.  Kendall  said,  he  had  been  impressed  with  the  belief  that 
no  doubts  existed  in  the  minds  of  the  Committee  as  to  the  under 
taking  of  the  claimants  and  the  rendition  of  the  service,  and  that 
he  had  prepared  himself  to  discuss  only  the  obligation  of  the  Uni 
ted  States  to  grant  the  indemnity  prayed  for.  There  were  argu 
ments  bearing  on  that  subject  not  embraced  in  the  Memorial,  under 
the  impression  that  the  views  therein  presented  were  conclusive  as 
to  the  obligation  of  the  United  States  to  allow  this  claim. 


We  base  our  claim  upon  the  United  States,  said  Mr.  Kendall,  on 
the  following  grounds,  viz : 

1.  The  duty  of  the  Government  to  protect  the  citizen  in  his  law 
ful  transactions,  against  wrong  by  foreign  powers,  and  seek  redress 
and  indemnity  when  wrongs  anj  committed  by  such  powers. 

2.  The  obligation  of  the  Government,  when  in  furtherance  of  its 
policy,  it  destroys  or  impairs  the  creditor's  security,  to  pay  the  debt 
out  of  its  own  Treasury. 

3.  The  obligation  of  the  Government  to  respect  its  own  laws  in 
its  dealings  with  the  citizen. 

1.  The  first  ground  divides  itseif  into  two  branches :  First 
where  the  power  is  entirely  foreign  and  independent,  as  Great  Bri 
tain,  France  and  Mexico;  and  secondly,  where  the  power  is  foreign 
to  some  extent  but  not  independent,  such  as  the  Indian  Tribes  with 
in  the  limits  of  the  United  States. 

The  protection  of  the  citizen  against  wrongs  and  outrages  from 
foreign  nations,  is  perhaps  the  highest  duty  of  our  general  govern 
ment.  To  this  end  is  its  entire  diplomatic  system  and  its  entire 
naval  establishment  maintained  at  an  annual  expense  of  many  mil 
lions  of  dollars.  When  a  civilized  nation  seizes  unlawfully  the 
property  of  an  American  citizen,  redress  is  demanded  through  our 
diplomatic  agents ;  when  by  a  savage  or  barbarian  power,  it  is  de 
manded  at  the  cannon's  mouth. 

We  do  not  mean  to  say,  nor  is  it  necessary  to  our  argument, 
that  government  is  bound  in  all  cases  to  obtain  indemnity  for 
wrongs  done  its  citizens  by  foreign  powers  or  pay  the  money  out 
of  its  own  Treasury  ;  but  we  do  say,  it  is  bound  to  use  all  reason 
able  exertions  for  that  purpose.  We  do  say,  that  if  the  indemnity 
be  within  its  own  power,  or  the  securing  of  it  dependent  on  its  own 
will-,  it  will  be  faithless  to  its  trust  if  it  do  not  secure  it,  and  will 
become  justly  liable  to  indemnify  the  citizen  out  of  its  own  Trea 
sury. 

During  the  wars  which  grewr  out  of  the  French  revolution,  an 
immense  amount  of  American  property  afloat  on  the  ocean,  was  un_ 
lawfully  seized  by  British  cruisers.  Our  government  negotiated, 
remonstrated  and  finally  went  to  war ;  but  i'ailed  in  obtaining  redress. 
It  had  discharged  its  duty  to  the  utmost  of  its  power  and  was  not 
bound  to  indemnify  the  citizen  for  his  losses  by  British  depredations. 

Similar  depredations  were  committed  by  French  cruisers  which 
became  the  subject  of  negotiation.  A  portion  of  the  claims  of 
American  citizens  thence  arising,  were  given  up  by  Treaty  EF  9  con- 


i 

sideration  for  the  relinquishment  by  France  of- certain  claims  against 
the  United  States  growing  out  of  previous  Treaties.  For  these 
claims,  being  for  French  Spoliations  prior  to  1800,  the  holders  in 
sist  that  the  United  States  are  responsible,  and  for  about'fifty  years 
they  have  been  petitioning  Congress  for  redress. 

French  spoliations  subsequent  to  1800  continued  to  be  a  subject 
of  negotiation  until  after  General  Jackson's  accession  to  the  Presi 
dency,  when  by  Treaty  the  French  government  agreed  to  make  re 
stitution.  But  the  French  Legislative  Chambers  refused  to  make 
the  necesuary  appropriation  until  President  Jackson  recommended 
reprisals  upon  French  commerce  in  case  of  further  delay.  The 
money  was  then  forthcoming-. 

Claims  of  our  citizens  on  Mexico  were  one  of  the  causes  of  the 
Mexican  war;  and  in  the  Treaty  of  peace  three  and  a  quarter  mil 
lions  were  set  apart  out  of  the  indemnity  to  be  paid  to  Mexico  for 
Territory  ceded,  to  satisfy  those  claims. 

Now,  in -relation  to  French  spoliations  prior  to  1800,  if  the  Uni 
ted  States  had  had  money  belonging  to  the  French  government  in 
iheir  own  hands  sufficient  to  satisfy  them,  and  instead  of  so  apply 
ing  it  had  paid  it  over  to  the  French  nation,  would  not  the  case  of 
the  claimants  have  been  stronger  than  it  is  now  ?  And  if  they  had 
not  only  had  the  money  in  their  Treasury,  but  if  the  French  Gov 
ernment,  admitting  the  justice  of  the  claimants'  demands,  had  re 
quested  the  United  States  to  pay  them  out  of  that  fund,  and  yet  the 
United  States  had  pakl  it  over  to  the  French,  notwithstanding  that 
request,  wrould  not  their  claim  on  our  o\vn  Government  have  been 
irresistible? 

So  when  our  Government  had  received  the  indemnity  for  French 
spoliations  subsequent  to  1800.  if  it  had  refused  to  distribute  it 
among  our  own  suffering  citizens,  but  had  paid  it  back  to  France, 
would  not  the  act  have  been  denounced  as  a  faithless  dereliction  of 
duty,  and  would  not  the  claimants  have  had  a  just  claim  to  be  paid 
out  of  the  Treasury  of  the  United  States? 

In  relation  to  Mexican  claims,  the  indemnity  was  already  in  the 
hands  of  the  United  States  :  Could  they,  without  responsibility  to 
the  claimants,  have  paid  it  all  over  to  Mexico  and  told  their  own 
citizens  to  get  paid  as  they  could?  There  is  not  an  intelligent  and 
just  man  in  the  world,  who  would  not  have  said  the  government 
in  such  case  was  false  to  its"  trust  and  was  bound  to  indemnify  its 
citizens  out  of  its  own  Treasury. 


These  hypothetical  cases  are  based  on  general  principles,  which 
ought  to  guide  the  government  in  discharging  its  duty  to  the  citizen. 
We  shall  show  that  there  are  special  circumstances  in  our  case, 
which  make  it  much  stronger  than  any  we  have  supposed. 

II.  The  proposition  that  when,  in  furtherance  of  public  policy, 
the  government  destroys  or  seriously  impairs  a  creditor's  security, 
it  is  bound  to  pay  the  debt  out  of  its  Treasury,  is  so  obviously  just 
as  scarcely  to  admit  of  argument.  It  is  substantially  taking  private 
property  for  public  use. 

The  Republic  of  Texas  while  entirely  independent,  contracted 
debts  and  pledged  as  security  her  Custom  House  revenues.  By 
annexation  to  the  United  States,  these  revenues  were  diverted  from 
that  object  and  brought  into  the  Treasury  of  the  Union.  This  por 
tion  of  the  creditors  of  Texas  maintained,  that  inasmuch  as  the 
United  States  had  deprived  them  of  their  security,  they  were  bound 
to  provide  for  the  payment  of  their  demands.  Congress  yielded  to 
the  force  of  the  argument  and  gave  Texas  for  various  considerations 
ten  millions  of  dollars,  five  millions  of  which  were  set  apart  for 
the  payment  of  the  debt  in  question. 

Now,  suppose  the  government  of  Texas  had  been  annihilated  by 
the  Treaty  of  annexation,  and  that  not  only  her  customs  but  her 
public  lands  and  her  entire  power  of  taxation  had  passed  into  the 
hands  of  the  United  States,  would  not  the  claims  of  her  creditors 
on  our  government  have  been  incomparably  stronger  ?  Surely  no 
just  man  will  say,  that  the  United  States,  after  not  onlyttaking  away 
the  creditor's  security  but  annihilating  the  debtor,  would  not  have 
been  bound  to  pay  every  debt  of  T^exas  of  whatever  description. 
Now  let  us  apply  these  principles  to  the  case  in  hand. 
Every  principle  defining  the  duties  of  our  government  in  relation 
to  the  protection  of  our  citizens  in  their  lawful  transactions  with 
governments  entirely  foreign,  applies  with  greater  force  to  their 
transactions  with  the  Indian  Tribes  within  the  limits  of  the  United 
States.  The  obligation  of  the  government  to  protect,  is  commen 
surate  with  its  power  to  protect,  and  where  the  power  is  absolute, 
the  obligation  is  perfect. 

The  relation  in  which  the  Indian  Tribes  stand  to  the  United 
States  is  clearly  defined  in  the  opinions  given  by  Justices  of  the 
Supreme  Court  in  the  celebrated  case  of  the  Cherokee  Nation  vs. 
the  State  of  Georgia,  in  which  the  Cherokees  claimed  to  be  entire 
ly  independent. 


In  Peter's  Reports,  Vol.  V,  page  16,  Chief  Justice  Marshall 
speaks  of  this  subject  as  follows,  viz  : 

"The  Indian  Territory  is  admitted  to  compose  a  part  of  the  Uni- 
1  ted  States.  In  all  our  maps,  geographical  treaties,  histories,  and 
'  laws,  it  is  so  considered.  In  all  our  intercourse  with  foreign  na- 
'  tions,  in  our  commercial  regulations,  in  any  attempt  at  intercourse 
'  between  Indians  and  foreign  nations,  they  are  considered  as  with- 
'  in  the  jurisdictional  limits  of  the  United  States,  subject  to  many  of 
1  those  restraints  which  are  imposed  upon  our  own  citizens.  They 
4  acknowledge  themselves  in  their  treaties  to  be  under  the  protection 
4  of  the  United  States  ;  they  admit  that  the  United  States  shall  have 
1  the  sole  and  exclusive  right  of  regulating  the  trade  with  them,  and 
4  managing  all  their  affairs  as  they  think  proper ;  and  the  Chero- 
4  kees  in  particular  were  allowed  by  the  Treaty  of  Hopewell,  which 
4  preceded  the  constitution  '  to  send  a  deputy  of  their  choice,  when- 
4  ever  they  think  fit,  to  Congress.'  Treaties  were  made  with  some 
'  tribes  by  the  State  of  New  York,  under  a  then  unsettled  construc- 
4  tion  of  the  confederation,  by  which  they  ceded  all  their  lands  to 
'  that  State,  taking  back  a  limited  grant  to  themselves,  in  which  they 
'  admit  their  dependence. 

"  Though  the  Indians  are  acknowledged  to  have  an  unquestion- 
'  able,  and,  heretofore,  unquestioned  right  to  the  lands  they  occupy, 
'  until  that  right  shall  be  extinguished  by  a  voluntary  cession  to  our 
1  government ;  yet  it  may  well  be  doubted  whether  those  tribes 
'  who  reside  within  the  acknowledged  boundaries  of  the  United 
'  States  can,  with  strict  accuracy,  be  denominated  foreign  nations. 
'  They  may  more  correctly,  perhaps,  be  denominated  domestic  de- 
4  pendent  nations.  They  occupy  a  territory  to  which  we  assert  a 
'  title  independent  of  their  will,  which  must  take  effect  in  point  of 
'  possession  when  their  right  of  possession  ceases.  Meanwhile 
4  they  are  in  a  state  of  pupillage.  Their  relation  to  the  United 
1  States  resembles  that  of  a  ward  to  his  guardian. 

"  They  look  to  our  government  for  protection,  rely  upon  its  kind- 
4  ness  and  its  power ;  and  appeal  to  it  lor  relief  to  their  wants ;  and 
'  address  the  President  as  their  great  father.  They  and  their  coun- 
1  try  are  considered  by  foreign  nations,  as  well  as  by  ourselves,  as 
1  being  so  completely  under  the  sovereignty  and  dominion  of  the 
1  United  States,  that  any  attempt  to  acquire  their  lands,  or  to  form 
4  a  political  connection  with  them,  would  be  considered  by  all  as 
'  an  invasion  of  our  territory,  and  an  act  of  hostility.'' 


The  Cherokees  in  particular  had  virtually  acknowledged  them 
selves  not  only  dependent  but  subjects  of  the  United  States,  as 
shown  in  the  opinion  of  Justice  Baldwin  in  the  same  case.  Pages 
36-7,  he  says  : 

11 1  now  proceed  to  the  instructions  which  precede  the  Treaty  of 
'  Hopewell  with  the  complainants,  the  treaty,  and  the  consequent  pro- 
1  ceedings  of  Congress.  On  the  15th  of  March,  1785,  Commission- 
'  ers  were  appointed  to  treat  with  the  Cherokees  and  other  Indians. 
k  southward  of  them,  within  the  limits  of  the  United  States,  or  who 
v  had  been  at  war  with  them,  for  the  purpose  of  making1  peace  with 
'  them,  and  of  receiving  them  into  the  favor  and  protection  of  the 
:  United  States,  &.c.  They  were  instructed  to  demand  that  all  pri- 
«•  soners,  negroes  and  other  property  taken  during  the  war,  be  given 
'  up ;  to  inform  the  Indians  of  the  great  occurrences  of  the  last 

•  war;  of  the  extent  of  country  relinquished  by  the  late  treaty  of 
4  peace  with  Great  Britain;  to  <rive  notice  to  the  Governors  of  Vii> 
'  ginia,  North  and  South  Carolina  and  Georgia,  that  they  may  attend 
4  if  they  think  proper ;  and  were  authorized  to  expend  four  thou- 
'  sand  dollars  in  making  presents  to   the   Indians;  a  matter  well 
'  understood  in  making  Indian  treaties,  but  unknown  at.  least  in  our 
4  treaties  with  foreign  nations,  Princes  or  States,  unless  on  the  Bar- 
4  bary  coast.    A  treaty  was  accordingly  made  in  November  following, 
'  between  the  Commissioners  Plenipotentiaries  of  the  United  States 

*  of  the  one  part,  and  the  head  men  and  warriors  of  all  the  Chero- 

*  kees  of  the  other. 

"The  word  nation  is  not  used  in  the  preamble  or  any  part  of  the 
4  treaty,  so  that  we  are  left  to  infer  the  capacity  in  which  the  Chero- 
'  kees  contracted,  whether  as  an  independent  nation  or  foreign 
'  State,  or  a  tribe  of  Indians,  from  the  terms  of  the  treaty,  its  stipu- 
'  lations  and  conditions.  'The  Indians  for  themselves  and  their 
'  respective  tribes  and  towns,  do  acknowledge  all  the  Cherokees  to 
'  be  under  the  protection  of  the  United  States.'  Article  3,  1  Laws 
4  U.  S.,  322.  The  boundary  allotted  to  the  Cherokees  for  their 
'  hunting  grounds  between  the  said  Indians  and  the  citizens  of  the 
'  United  States,  within  the  limits  of  the  United  States,  is  and  shall 
4  be  the  following:  viz  :  (as  defined  in  Article  A.)  For  the  benefit 

•  and  comfort  of  the  Indians,  and  for  the  prevention  of  injuries  and 
'  aggressions  on  the  part  of  the  citizens  or  Indians,  the  United  States 
1  in  Congress  Assembled,  shall  have  the  sole  and  exclusive  right  of 


•  regulating  the  trade  with  the  Indians,  and  managing  all   their  af- 
'  fairs  in  such  manner  as  they  shall  think  proper.     Article  9." 

An  opinion  of  the  Attorney  General,  dated  December  21,  1830, 
in  which  is  discussed  the  political  condition  of  the  Western  Chero 
kees,  occupies  the  same  ground  in  relation  to  the  Indian  Tribes 
within  the  United  States  and  speaks  of  that  particular  Tribe  as 
follows,  viz  : 

"  In  the  Treaty  made  with  the  Cherokees  at  Hope  well  in  1785, 
'  it  is  provided,  that  the  United  States  "shall  have  the  sole  and  ex- 
4  elusive  right  of  regulating  the  trade  with  the  Indians  and  manag- 
'  ing  all  their  affairs  in  such  manner  as  they  think  proper.',  In  the 
'  Treaty  of  Telleco  in  1798,  the  pre-existing  treaties  between  the 

*  same  parties  are  acknowledged  to  be  in  force.      The  same  recog- 
'  nition  is  found  in  the  Treaty  at  the  same  place  in  1805.     And  in 
'  the  Treaty  with  both  parts  of  the  Tribe  entered  into  at  the  Cher- 
'  okee  Agency  in  1817,  and  with  a  view  to  the  removal  of  a  portion 
<  of  the    Tribe    west    of  the    Mississippi,  it    is    provided  "that  the 
1  Treaties  heretofore    made  between  the  Cherokee    Nation  and  the 
1  United  States  are   to  continue  in  full  force  with  both  parts  of  the 
c  nation"  while  the  Treaty  of  1828,  wnich  improves  the  condition 
4  of  the  Cherokees  west  of  the  Mississippi  by  their  location  beyond 
4  the  limits  of  State  and    Territorial  dominion,  and   in  the  perma- 
c  nent   guaranty  of  their  lands,  is  so  far  from  recognizing  them  as  a 
'  distinct  and   independent  people,  withdrawn  from  th'e  limits  and 
'  beyond  the  jurisdiction  of  the  United  States,  that  this  Treaty  itself 

•  contains  a  provision  that  the  United  States  shall,  when  they  desire 

*  it,  enact  for  them  a  set  of  plain  laws,  suited  to  their  condition." — 
Opinions  of  Attorney  General,  page  801. 

This  is  the  very  Tribe  of  Indians  with  whose  Delegation  we  con 
tracted. 

Now,  can  it  be  imagined,  that  the  obligation  of  the  government 
is  less  to  protect  the  citizen  against  wrong  from  this  dependent 
savage  tribe,  than  from  Great  Britain,  France  or  Mexico  ?  If  these 
Indians  seize  the  property  of  an  American  citizen,  is  its  duty  less 
to  seek  and  enforce  retribution  ?  And  if  it  holds  in  its  own  hands 
the  money  of  the  tribe,  and  the  citizen  shows  he  has  a  just  claim 
upon  them,  lawfully  contracted,  is  it  not  on  general  principles,  as 
much  its  duty  to  pay  it  out  of  that  fund  as  it  was  to  distribute  a- 
mong  its  own  citizens,  creditors  of  Mexico,  the  indemnity  money 
2 


10 

reserved  in  the  Treaty  of  Guadalupc  Hidalgo  ?  If  in  that  case,  the 
United  States  had  the  consent  of  the  government  of  Mexico  to  the 
distribution,  so  in  this  they  had  the  consent  of  the  Western  Chero- 
kees  through  their  only  existing  authorities,  their  recognized  Dele~ 
gation. 

If  our  claim  had  been  against  France,  which  government  had  not 
only  recognized  it,  but  had  requested  the  United  States  to  pay  it  out 
of  French  money  in  their  Treasury,  and  they  had  not  only  refused 
to  do  so,  but  had  distributed  the  money  among  the  French  people, 
would  they  not  have  been  bound  to  pay  it  out  of  their  own  Trea 
sury  ? 

If  our  claim  had  been  against  Mexico  instead  of  the  Western 
Cherokees,  and  if,  instead  of  paying  us  out  of  the  Treaty  Fund,  the 
United  States  had  distributed  that  fund  among  the  people  of  Mexico, 
would  they  not  have  been  bound  to  pay  it  out  of  their  own  Trea 
sury  ? 

In  our  case,  the  United  States  not  only  scattered  our  money  a- 
mong  the  Indians,  but  utterly  destroyed  our  security  by  taking  from 
the  Western  Cherokees,  all  their  property  and  claims  and  even  their 
separate  existence  as  a  party,  merging  them  into  one  corporate  body 
with  the  other  Cherokee  parties.  Their  annuities  had  already  been 
taken  from  them  without  their  consent,  and  in  the  4th  Article  of  the 
Treaty  of  1846,  they  surrendered  every  thing  else. 

The  last  clause  of  that  Article,  reads  as  follows,  viz: 

''•In  consideration  of  the  foregoing  stipulation  on  the  part  of  the 
«  United  States,  the  '  Western  Cherokees  '  or  '  Old  Settlers,"  here- 
'  by  release  and  quit-claim  to  the  United  States  all  right,  title,  inter- 
'  est,  or  claim,  they  may  have  to  a  common  property  in  the  Cherokee 
'  lands  east  of  the  Mississippi  river,  and  to  exclusive  ownership  to 
i  the  lands  ceded  to  them  by  the  treaty  of  1833  west  of  the  Missis- 
'  sippi,  including  the  outlet  west,  consenting  and  agreeing  that  the 
'  said  lands,  together  with  the  eight  hundred  thousand  acres  ceded 
i  to  the  Cherokees  by  the  Treaty  of  1835,  shall  be  and  remain  the 
, '  Common  property  of  the  whole  Cherokee  people,  themselves  in- 
'.  eluded." 

The  2d  Article  of  the  Treaty  provides  as  follows,  viz: 

"  All  difficulties  and  differences  heretofore  existing  between  the 
'  several  parties  of  the  Cherokee  Nation,  are  hereby  settled  and 
'  adjusted,  and  shall  as  far  as  possible,  be  forgotten  and  forever 
1  buried  in  oblivion. 


11 

4<  All  party  distinctions  shall  cease,  except,  so  far  as  they  may  be 
4  necessary  to  carry  out  this  convention  or  treaty.  A  general  amnes- 
(  ty  is  hereby  declared.  All  offences  and  crimes  committed  by  a 
4  citizen  or  citizens  of  the  Cherokee  Nation,  against  the  nation,  or 
'  against  an  individual  or  individuals,  are  hereby  pardoned.  All 
4  Cherokees  who  are  now  out  of  the  nation,  are  invited  and  earn- 
'•  estly  requested  to  return  to  their  homes,  where  they  may  live  in 
4  peace,  assured  that  they  shall  not  be  prosecuted  for  any  offence 
4  heretofore  committed  against  the  Cherokee  Nation,  or  any  individ- 
<  ifal  thereof.,'  *  *  *  * 

Article  5th  of  the  Treaty  is  as  follows,  viz  : 

44  It  is  mutually  agreed  that  the  per  capita  allowance  to  be  given  to 
4  the  Western  Cherokees  or  Old  Settlers  upon  the  principle  above 
'  stated,  shall  be  held  in  trust  by  the  Government  of  the  United 
'  States  and  paid  out  to  each  individual  belonging  to  that  party  or 
'  head  of  family  or  his  legal  representatives." 

These  extracts  from  the  Treaty  clearly  exhibit  the  position  of  the 
United  States  in  relation  to  the  Western  Cherokees  and  their 
creditors. 

The  first  shows  that  the  United  States,  in  arranging  the  affairs  of 
this  dependent  Tribe  of  Indians  to  suit  their  own  policy,  exacted 
from  them  a  surrender  of  all  their  separate  property  and  claims. 

The  second  extract  shows,  that  thenceforward  they  were  to  be 
considered  extinct  as  a  separate  party,  band  or  tribe,  and  merged 
with  the  other  Cherokee  parties  into  one  community. 

The  third  extract  shows,  that  the  moneys  to  be  allowed  the  West 
ern  Cherokees  in  consideration  of  the  surrender  of  all  their  lands, 
claims  and  existence  as  a  separate  community,  were  to  be  held  by 
the  United  States  in  trust  for  the  individuals  iclio  had  constituted the 
party  thus  annihilated. 

Now,  we  had  a  just  and  lawful  claim  against  the  Western  Chero 
kees  as  a  party,  of  which  the  United  States  were  fully  apprised. 
With  this  knowledge,  they  proceed  to  dissolve  that  party  and  take 
all  its  effects  into  their  own  hands  to  be  distributed  among  the  in 
dividuals  who  composed  it.  Could  they  justly,  or  honestly,  or 
lawfully,  make  such  distribution  regardless  of  the  just,  lawful  and 
acknowledged  claims  of  the  creditors  of  that  party  ? 

Had  Texas  in  the  Treaty  of  annexation  surrendered  not  only  all 
her  property,  but  her  power  of  taxation  and  her  separate  existence 
in  consideration  of  a  sum  of  money  to  be  paid  to  her  citizens  per 


12 

capita,  could  the  United  States  have  accepted  the  surrender  without 
becoming  reponsible  for  all  her  just  debts  ?  And  if  by  the  Treaty 
of  Guadalupe  Hidalgo,  the  Mexican  Republic  had  been  dissolved 
and  the  whole  indemnity  money  had  been  paid  out  to  individual 
Mexicans,  regardless  of  the  just  claims  of  American  citizens  on 
Mexico,  would  not  the  government  have  been  bound  to  pay  those 
claims?  But  those  com  muni  lies  were  not  annihilated ;  and  had  the 
United  States  failed  to  do  their  duty  by  securing  indemnity  to  their 
injured  citizens,  they  might  have  still  have  appealed  to  their  debtors 
for  redress.  But  in  our  case  it  is  not  so.  The  United  States  de 
stroy  our  debtor  and  convert  his  effects  into  money  in  their  own 
Treasury.  And  when  a  creditor,  with  a  claim  acknowledged  to  be 
as  just  as  ever  existed,  comes  and  asks  payment  out  of  these  effects, 
he  is  told  that  they  are  held  in  trust  for  the  bankrupt  heirs  of  the 
debtor !  And,  though  a  citizen  specially  entitled  to  the  protection 
of  his  government,  he  finds  that  government,  not  indeed  conspiring 
to  defraud  him,  but  of  its  own  will  pursuing  a  course  to  deprive 
him  of  his  just  dues  as  effectually  as  if  it  were  a  party  to  a  wilful 
and  stupendous  fraud.  It  destroys  the  security,  kills  the  debtor  and 
administers  upon  his  effects,  but  refuses  to  pay  his  debts  out  of  his 
own  assets ! 

Can  our  government  do  all  this  without  incurring  any  responsi 
bility  to  its  own  citizens  whose  interests  it  is  solemnly  bound  to 
protect  ? 

III.  All-sufficient  as  general  principles  are  to  sustain  our  claim 
against  the  governments;  it  rests  also  on  a  still  stronger  ground  :  To 
WH  : — The  utter  disregard  by  the  government  of  its  own  laws  in  our 
case. 

Our  contract  was  dated  the  12th  day  of  July,  1843. 

It  had  from  time  immemorial  been  the  established  law  in  England 
and  the  United  States,  that  a  Power  of  Attorney  coupled  with  a 
contract  as  security  for  money  lent  or  compensation  for  services 
rendered,  is  irrevocable.  Our  own  Supreme  Court  in  the  case  of 
Hunt  vs.  Rousmanier,  found  in  8th  Wheaton's  Reports,  pages  201- 
2,  held  the  following  language,  viz  : 

"  The  general  rule  is,  that  a  letter  of  attorney  may  at  any  time  be 
'  revoked  by  the  party  who  makes  it,  and  is  revoked  by  his  death. 
'  But  this  rule,  which  results  from  the  nature  of  the  act,  has  sus- 
11  tained  some  modification.  Where  a  letter  of  attorney  forms  a  part 
'  of  a  contract,  and  is  security  for  money,  or  for  the  performacc  of 


13 

•  any  act  which  is  deemed  valuable,  it  is  generally  made  irrevoca- 
4  ble  in  terms,  or,  if  not  so.  is  deemed  irrevocable  in  law.     Although 
4  a  letter  of  attorney  depends  from  its  nature  on  the  will  of  the  per- 
4  son  making  it,  and  may  in  general  be  revoked  at  his  will;  yet,  if 
1  he  binds  himself  for  a  consideration  in  terms,  or  by  the  nature  of 
'  his  contract,  the  law  will  not  permit  him  to  change  it." 

The  law,  as  thus  laid  down,  had,  prior  to  our  contract  with  the 
Western  Cherokees,  been  recognised  and  acted  upon  by  the  Gov 
ernment  of  the  United  States. 

At  page  1,066  of  "Attorney  Generals'  Opinions"  there  is  an 
opinion  of  Attorney  General  B.  F.  Butler,  to  the  effect  that  a  power 
of  attorney  to  secure  an  agent's  commission  cannot  be  revoked.  His 
language  is  as  follows,  viz  : 

"  In  my  opinion,  the  letter  of  attorney  to  Mr.  Lawrence,  executed 
4  by  N.  Rogers,  surviving  executor  of  the  estate,  may  at  any  time  be 

•  revoked  by  him,  except  as  to  the  admitted  amount  of  Mr.  Lawrence  '* 
fc  commission— jive  per  cent.     Your  Department,  in  my  opinion,  will 
4  therefore  be  justified  in  issuing  the  certificates  on  the  award  to  Mr. 

•  ttogers  himself,  or  to  any  attorney  he   may  appoint,  for  95  per 
'  cent,  thereof,  on  his  due  revocation  of  the  former  power." 

But  the  principle  is  much  more  explicitly  laid  down  by  Attorney 
General  Gilpin,  in  March,  1840,  (Churchill's  case, pages  1,303 — 4:) 

<4  Your  first  inquiry  is,  whether  the  provisions  of  the  9th  and  17th 
4  articles,  (which  direct  that  the  just  debts  of  the  Indians  shall  be 
!  paid  out  of  any  moneys  due  them  for  their  improvements  and 

•  claims  arising  under  or  provided  for  by  the  treaty  shall  be  examined 
<  and  adjudicated  by  certain  commissioners,  whose  decision  shall 
4  be  final,)  apply  to  the  case  of  a  person  to  whom  a  debt  was  owing 

•  at  the  date  of  the  treaty,  but  who  has  acted  as  an  attorney  for  the 

•  Indian,  for  the  recovery  of  his  claim,  and  has  had  the  sum  in 

•  question  adjudicated  to  him  as  a  proper  compensation  for  so  acting. 
'  In  reply  to  this  inquiry,  I  have  the  honor  to  say,  that  I  do  not  con- 
4  sider  this  to  be  one  of  the  debts  intended  to  be  provided  for  by  the 
4  9th  article  of  the  treaty.     1  am  of  opinion,  however,  that  if  the 
'  person  presenting  the  claim  was  a  duly  constituted  attorney  of  the 
4  Indian,  with  authority  to  prosecute  and  recover  the  claim,  and  the 
1  Department  is  satisfied  that  the  contract  between  him  and  tis 
'  principal  is  free  from  fraud,  and  is  a  just  compensation  for  services 
4  rendered — in  such  case  he  has  an  interest  in  the  fund,  which  the 

•  Department  ought,  to  recogize;  and  it  should  not,  by  paying  over 


14 

4  the  whole  amount  to  the  Indian,  subject  him  to  the  probable  dan- 
4  ger  of  loss,  and  the  certainty  of  much  expense  and  delay. 

"  Your  second  inquiry  is,  whether  the  whole  scope  of  the  treaty 
4  does  not  warrant  a  payment  to  the  Indians,  in  person,  of  such  sums 
'  as  may  be  due  to  them  under  it;  or  whether  they  must  be  paid  to 
4  persons  who  present  powers  of  attorney  from  them  ? 

"  In  reply  to  this  inquiry,  I  have  the  honor  to  state,  that  the  treaty 
'  clearly  recognises  payments  directly  to  the  Indians,  and  the  De- 
'  partment  will  be  fully  warranted  in  so  making  them.  I  beg,  how- 
4  ever,  to  observe,  that  I  consider  the  remarks  I  have  made  in  reply 
'  to  your  first  inquiry  as  equally  applicable  to  these  cases ;  for  cer- 
4  tainly,  where  an  attorney  has  performed  an  important  service, 
4  collected  the  evidence,  and  been  instrumental  in  securing  a  claim 
'  which  might  otheawise  have  been  lost ,  and  where  this  has  been 
'  done  under  the  stipulation,  or  with  a  bona  fide  tmderst  anding, 
1  that  he  was  to  receive  the  amount  to  which  he  was  entitled  direct- 
*  ly  from  the  United  States,  he  has  an  interest  in  the  fund,  which 
1  the  principal  himself  could  not  revoke,  and  which  the  Department 
'  is  bound  to  recognise." 

This  was  the  law  as  announced  by  both  the  Judicial  and  Execu 
tive  Branches  of  our  Government  when  our  contract  was  made. 

The  case  before  the  Attorney  General  was  perfectly  parallel  to 
onrs,  involving  the  rights  of  Indians  and  their  Agents  and  the  duties 
of  the  Government.  The  Law  Officer  of  the  government  told  the 
War  Department  that  is  was  4<  bound  to  recognise"  an  Agent's  in 
terest  in  Indian  funds,  created  by  '4  a  stipulation  or  a  bona  fide  un 
derstanding  "  that  he  was  to  receive  his  compensation  for  services 
rendered  "  directly  from  the  United  States." 

How  '4  bound  to  recognise  "  ?  By  the  Law  of  the  Land  establish 
ed  by  its  Courts,  making  such  Powers  of  Attorny  irrevokable  and 
requiring  the  holder  of  the  fund  to  pay  over  to  the  Agent  his  por 
tion  of  it  so  secured. 

We  availed  ourselves  of  the  unquestioned  and  unquestionable 
Law  of  the  Land  as  announced  by  the  government  itself,  in  making 
our  contract  with  the  Western  Cherokees.  The  service  undertaken 
by  us  was  arduous.  They  had  no  means  of  compensating  us  but 
by  giving  us  "  an  interest  in  the  fund  "  which  they  might  obtain  as 
indemnity.  We  consented  to  accept  that  interest  and  proceeded  to 
secure  it,  not  by  '4a  bona  fide  understanding,"  but  by  4C  an  express 
stipulation,"  or  irrevocable  power  of  attorney,  just  such  a  title  as 


15 

the  government  stselt'  told  us  it  was  Abound  to  recognize."  to  show 
this  beyond  all  cavil.  I  beg  leave  to  read  an  extract  from  our  con 
tract,  viz: 

"  Jn  consideration  whereof,  the  undersigned.  John  Rogers,  John 
1  L.  McCoy,  and  Ellis  F.   Phillips,  Delegates  duly  authorized  as 

*  aforesaid,  do  hereby,  on  behalf  of  said  Cherokees  West,  covenant 
c  and  agree  to  pay,  or  cause  to  be  paid,  the  full  commission  of  five 
'  per  cent,  to  the  said  A.  fy  J.  E.  Kandall,  upon  any  sum  or  sums 
4  of  money  or  whatever  else  of  value  may  be  allowed  and  appropri- 
4  ated  in  full  or  part  satisfaction  of  said  claims,  to  be  paid  from  time 
'  to  time,  as  appropriated  or  allowed ;  and  the  said  Delegates  do 
'  hereby  authorize   and  empower  the  said  A.  $•  J.  E.   Kendall,  as 
1  agents  and  atttorneys  in  fact  for  the  said  Cherokees  West,  to  de- 
4  mand  and  receive  from  the  Treasury  of  the  United  States,  or  from 
'  the  proper  office  or  officer  thereof,  one-twentieth  part  of  all  sums 
'  of  money  which  may  be  allowed  and  appropriated,  or  one-twen- 
'  tieth  part  of  any  stock,  scrip,  or  any  other  species  of  funds,  secu- 
4  rities,  or   annuities,  which  may  be  allowed,  to  be  made  out  and 
'  issued  in  their  own  names;  and  if  lands  or  other  property,  or  any 
1  interest  theretn,  shall  he  granted  in  discharge  of  said  claims,  or 
1  any  part  thereof,  to  demand  and  receive  from  the  proper  office  or 
4  officer  a  full  title  to  one-twentieth  part  thereof,  it  being  the  true 
'  intent  and  meaning  of  said  Delegates  that  the   said   A.  $•  J.   E. 
1  Kendall  shall  receive  five  per  cent,,  or  one-twentieth  part,  of  any 

*  and  every  thing  of  value  which   may  be  granted  or  appropriated 
1  on  account  of  said  claims,  to  be  received  directly  from  the  United 
1  States  without  any  further  act  or  authority  by  or  from  the  said 
4  Cherokees  West. 

c<  And  the  said  Delegates  do  further  authorize  and  empower  the 
'  said  A.  $•  J.  E.  Kendall,  as  agents  and  attorneys  in  fact  of  the 
1  said  Cherokees  West,  to  sign  the  names  of  the  said  Delegates  to 
c  any  letters  and  memorials  to  the  President,  Secretary  of  War, 
1  Senate,  House  of  Representatives,  or  other  officer  or  individual 
'  necessary  to  the  prosecution  and  allowance  of  said  claims  ;  and 
'  to  execute  any  receipts,  acquittances,  or  other  instruments  of  writ- 
'  ing  which  may  be  necessary  to  procure  the  payment  or  delivery 
'  to  them,  according  to  the  true  intent  and  meaning  of  this  instru- 
'  ment,  of  one-twentieth  part  of  the  money,  property,  or  evidence 

*  of  right,  title,  or  claim   to  any  money  or  property  which  may  be 


16 

appropriated  or  allowed  in  satisfaction  of  said  claims  in  full  or 
4  in  part.1' 

For  the  whole  contract,  see  Senate.  Ex.  Doc.  No.  32,.  1  Sess,  32 
Congress,  page  27  to  30. 

Now,  I  beg  the  Committee  to  consider,  whether  it  was  possible 
for  us  by  any  frame  of  words  more  effectually  to  bring  our  case 
within  the  principle  laid  down  by  Chief  Justice  Marshall,  and  At 
torneys  General  Butler  and  Gilpin. 

Here,  in  the  language  of  Chief  Justice  Marshall,  il  a  letter  of  at 
torney  forms  part  of  a  contract,"  and  is  ike  only  security  for  the  per 
formance  of  valuable  services — such  as  he  says  "7.9  deemed  irrevoca 
ble  in  law." 

Here,  there  is  not  a  <•' bona  fide  understanding"  merely,  but  a 
wrriten  "  stipulation  "  that  we  were  to  receive  the  amount  to  which 
we  might  be  "entitled  directly  from  the  United  States,"  which  the 
Attorney  General  says,  gave  us  ^  an  interest  in  the  fund" — an  inter 
est  which  the  Cherokees  themselves  "  could  not  revoke  " — an  inter 
est  which  the  Governments  is  bound  to  recognised 

Now,  was  the  law  as  laid  down  by  Chief  Justice  Marshall  un 
sound  ?  Was  the  law  and  its  consequences  as  laid  down  by  the 
Attorney  General  false  and  defective  ?  Was  the  usage  of  the  gov 
ernment  f which  is  a  law  to  the  citizen,)  from  time  immemorial  and 
for  years  after  the  formation  of  our  contract,  unjust  and  illegal  ? 
No  man  pretends  to  question  the  law  or  the  usage  under  it.  The 
Chief  Justice  was  right,  the  Attorney  General  was  right,  the  usage 
of  the  government  was  in  conformity  with  law  and  right. 

What  is  the  legal  consequence  ?  Our  contract  and  power  of  at 
torney  gave  us  an  actual  vested  interest  in  the  claim  of  the  Western 
Cherokees,  beyond  their  own  reach,  beyond  the  lawful  reach  of  the 
United  States,  secure  by  all  the  forms  and  sanctions  which  the  laws 
could  cast  around  it.  It  was  ours,  ovr  property  in  the  hands  of  the 
government,  as  effectually  and  entirely  as  the  balance  of  the  claim 
was  the  property  of  the  Western  Cherokees.  The  United  States 
had  no  more  lawful  right  to  pay  over  our  interest  to  the  Western 
Cherokees  than  they  had  to  pay  over  to  us  the  portion  belonging 
to  the  Western  Cherokees.  Such  is  the  unquestionable  result  of  the 
application  of  the  law  as  laid  down  by  the  government  itself  for 
the  guide  of  the  citizen. 

Yet,  the  Uniied  States,  in  disregard  of  our  rights  and  its  own 
laws,  unrepealed  and  unaltered,  after  full  notice  of  the  facts  in  the 


17 

case,  refused  to  pay  over  to  us  that  portion  of  the  Western  Chero 
kee  Fund  which  of  right  and  by  law  belonged  to  us,  and  distributed 
it  among  the  Western  Cherokee*.  They  treated  as  revoked  a  pow 
er  of  attorney  which  by  law  was  irrevocable  ;  they  disregarded  an 
interest  they  were  bound  by  law  to  recognize ;  and  having  with  their 
eyes  open  given  away  our  money  in  their  hands,  to  those  to  whom 
it  did  not  belong,  they  are  as  much  bound  to  indemnify  us  as  they 
would  be  any  other  citizen  whose  property  they  might  seize  and 
give  it  to  the  Indians. 

What  had  we  done  to  forfeit  our  right  to  the  protection  of  our 
country's  laws  and  justify  this  act  of  confiscation  ?  Nothing  what 
soever.  We  were  recognised  by  the  Government  through  a  series 
of  years  as  agents  of  the  Western  Cherokees;  as  such  we  received 
official  notice  of  the  appointment  of  the  commissioners  who  nego 
tiated  the  treaty  of  1846 ;  we  appeared  before  them  and  addressed 
them  in  our  official  character ;  and  to  our  labors,  in  a  great  meas 
ure,  have  the  officers  of  our  own  Government  attributed  the  success 
of  the  Western  Cherokees.  Not  a  shadow  of  imputation  has  been 
cast  upon  our  fidelity  to  our  principals  or  to  our  own  Government ; 
on  the  contrary,  we  are  told  here  and  elsewhere  that  no  doubt  ex 
ists  about  the  facts,  and  that  the  only  question  is  whether  the  Uni 
ted  States  are  by  law  bound  to  pay  our  claim  ?  In  other  words,  are 
they  bound  to  refund  to  us  our  money,  which)  knowing  it  to  be  ours, 
they  have  given  to  the  Western  Cherokees  ?  It  would  seem  scarcely 
necessary  to  do  more  than  state  the  proposition  to  elicit  an  affirma 
tive  response ;  but  let  us  consider  for  a  moment  the  pleas  upon 
which  it  is  supposed  the  Government  is  justified  in  withholding 
relief. 

The  main  plea  is,  that  the  treaty  of  1846  provides  on  its  face  that 
all  the  moneys  found  due  to  the  Western  Cherokees  should  be  paid 
to  them  individually,  per  capita,  and  that  this  provision  was  bind 
ing  on  the  United  States,  being  a  part  of  their  bargain  with  the 
Western  Cherokees.  ->  - 

Now,  our  contract  with  the  Western  Cherokees  preceded  the 
treaty  more  than  three  years.  By  that  contract  and  power  of  at 
torney  we  acquired  "  an  interest  in  this  fund,"  which  the  West 
ern  Cherokees  could  not  revoke.  How  then  could  they  make  any 
lubsequent  arrangement  by  treaty  or  otherwise,  binding  on  them 
selves  or  anybody  else,  which  should  give  a  different  direction  to 


18 

that  interest  ?  It  was  no  longer  theirs  to  dispose  of,  and  if  they  at 
tempted  to  dispose  of  it  in  any  other  way,  their  act  was  void.  And 
is  it  possible  that  an  act  illegal  and  void  on  their  part,  can  be  con 
sidered  binding  on  the  United  States  ?  If  they  attempted  by  treaty 
to  secure  to  themselves  or  to  any  one  else  property  which  they  had 
previously  irrevocably  alienated,  were  the  United  States  bound  to 
consider  such  a  fraudulent  act  binding  on  them  ?  Suppose  the  en 
tire  claim  of  the  Western  Cherokees  had  been  assigned  away  by 
an  instrument  admitted  to  be  legal  and  irrevocable  by  the  laws  of 
the  United  States ;  suppose  that  concealing  this/act  they  had  made 
a  treaty  with  the  United  States  providing  for  the  distribution  of 
the  same  property  among  themselves ;  and  suppose  before  the  ex 
ecution  of  the  treaty,  the  fraud  had  been  discovered — is  there  an 
honest  man  in  the  world  who  would  say  the  United  States  were 
bound  to  consummate  the  fraud  by  executing  that  portion  of  the 
treaty  ?  We  think  not ;  we  think  every  member  of  this  committee 
and  every  honest  man  would  say  it  was  their  duty  not  to  deliver 
the  property  as  provided  in  the  treaty,  but  to  turn  it  over  to  its 
true  and  lawful  owners. 

This  principle  applies  directly  to  our  case.     Five  per  cent,  or 

one-twentieth  part  of  the  Western  Cherokee  claim,  became  ours  by 

S  •'••••• 

an  instrument  irrevocable  in  law  before  the  treaty  was  formed. 

Practically,  the  Western  Cherokees  attempted  to  defraud  us  by 
agreeing  to  a  provision  in  the  treaty  for  dividing  our  compensation 
among  themselves  and  turning  us  adrift  without  a  dollar.  Now, 
was  it  the  duty  of  our  own  Government  to  aid  in  and  insist  upon 
the  consummation  of  the  fraud  ?  If  the  Western  Cherokees  imposed 
on  the  United  States  a  treaty  provision  robbing  citizens  of  the  Uni 
ted  States  of  their  vested,  legal  rights  and  property,  is  it  their  duty 
by  executing  the  fraudulent  provision  to  aid  the  Indinns  in  consum 
mating  the  robbery  ?  To  say  tjiat  it  is,  is  to  say  that  it  is  the  duty 
of  Government  in  such  cases  to  promote  fraud  instead  of  punishing 
it — to  combine  with  the  savage  to  cheat  its  own  citizens,  instead  of 
affording  them  the  protection  of  its  laws  and  its  power  in  their  law 
ful  transactions  with  the  children  of  the  forest. 

I  said  practically  the  Western  Cherokees  attempted  to  defraud  us 
by  the  per  capita  provision  in  the  treaty.  .1  acquit  the  delegation 
of  any  intentional  fraud.  They  evinced  from  first  to  last  a  desire 
that  their  contract  with  us  should  be  executed  in  good  faith,  and 


19 

after  the  treaty  was  ratified  made  the  following  endorsement  upon 
our  contract,  viz  :— 

14  The  undersigned,  delegates  of  the  Western  Gherokees  or  Old 
'  Settlers,  being  a  party  to  the  treaty  recently  concluded  to  put  an 
'  end  to  Cherokee  difficulties,  do  hereby  authorize  and  request  the 
4  Secretary  of  War  to  pay  the  commissions  stipulated  for  in  the 
'  within  contract  out  of  any  moneys  which  may  be  appropriated  to 
4  pay  the  debts  of  the  Old  Settlers,  or  out  of  any  moneys  which 
4  may  be  found  due  to  them  under  the  said  treaty,  it  being  our  in- 
c  tention  that  this  contract  shall  be  executed  in  good  faith."  (Page 
30,  Doc.  above  referred  to.) 

This  endorsement  was  signed  by  every  man  of  the  western  del- 
egat'on  who  signed  the  treaty.  They  came  to  Washington  with 
written  authority  from  their  people  to  employ  and  pay  counsel, 
and  in  that  particular,  as  well  as  in  any  arrangement  with  the  Uni 
ted  States,  to  bind  their  constituents  the  same  as  if  every  one  of 
them  were  present  and  consenting.  By  virtue  of  this  authority  they 
entered  into  the  contract  with  us,  and  by  the  same  authority  they 
entered  into  the  treaty  with  the  United  States.  Now,  the  provi 
sion  in  the  treaty  for  the  distribution  of  the  indemnity  among  the 
Western  Cherokees,  individually,  was  a  provision  for  their  benefit, 
and  not  for  the  benefit  of  the  United  States.  The  Western  Chero 
kees  had  a  right  to  waive  this  benefit,  and  under  the  circumstances, 
it  was  their  duty  as  honest  men  to  do  so  in  favor  of  their  bona  fide 
creditors.  By  this  endorsement  upon  our  contract  they  did  waive 
and  relinquish  it  in  our  favor  to  the  extent  of  our  compensation. 
The  relinquishment  rested  on  precisely  the  same  authority  as  the 
treaty,  and  was  equally  binding  on  the  Cherokees,  collectively  and 
individually.  Bid  the  United  States  hasten  to  avail  themselves  of 
this  act  of  the  Western  Cherokee  delegation  for  the  purpose  of  se 
curing  justice  to  their  citizens  ?  There  was  now  not  the  slightest 
obstacle  to  the  payment  of  our  just  claim  except  the  will  of  our 
own  Government.  It  had  the  money  in  hand ;  it  had  before  it  not 
only  our  contract  and  power  of  attorney,  showing  that  we  had  "an 
interest  in  the  fund"  which  it  was  "  bound  to  recognise,"  but  it 
had  also  an  express  relinquishment  by  the  Western  Cherokees,  ex 
ecuted  after  the  ratification  of  the  treaty,  of  all  claim  to  so  much 
of  the  indemnity  as  was  necessary  to  discharge  their  debt  to  us. 
Every  obstacle  and  every  pretext  being  thus  removed,  why  did 
this  great  and  powerful  Government,  which  sends  minister*  all 


20 

over  the  world,  and  equips  armies  and  navies  to  protect  its  citizens 
in  their  lawful  transactions  with  foreign  nations  and  people,  com 
ply  with  the  request  of  these  dependant  but  to  us  foreign  people, 
and  pay  us  our  compensation? 

So  clear  was  our  right,  and  so  palpable  the  wrong  of  withholding 
our  money,  that  it  would  probably  have  been  paid  to  us  but  for  the 
interposition  of  Congress.  While  the  act  making  an  appropriation 
to  pay  the  Western  Cherokees  was  passing  through  the  Senate,  a 
Senator  offered  the  following  proviso,  which  was  suddenly  adopted 
by  both  Houses  of  Congress  and  became  a  part  of  the  law,  viz ; 

"Provided,  That  in  no  case  shall  any  money  hereby  appropriated 
1  be  paid  to  any  agent  of  said  Indians,  or  any  other  person  or  per- 
4  sons  than  the  Indian  or  Indians  to  whom  it  is  due." 

Though  the  professed  object  of  this  proviso  was  to  protect  the  in 
dividual  Indians  against  frauds  wm'ch  might  be  practised  upon  them 
when  the  money  came  to  be  distributed,  by  powers  of  attorney  frau 
dulently  procured  in  the  Indian  country,  it  was  construed  by  the 
Executive  as  prohibiting  payments  to  agents  of  any  description.  All 
the  facts  of  our  case  were  before  both  Houses  of  Congress,  and  a 
Report  of  the  Indian  Committee  before  one  House  admitting  that  the 
Government  would  be  bound  to  pay  the  claim  itself,  if  provision 
were  not  made  to  pay  it  out  of  the  Western  Cherokee  fund ;  yet  so 
hastily  was  the  proviso  passed,  that  probably  not  one  man  in  either 
House  fully  appreciated  its  practical  effect.  Was  there  one  man 
who  would  have  voted  for  it  if  he  had  understood  it?  Was  there 
one  man  who  would  have  voted  to  take  money  which  by  moral  right 
and  the  forms  of  law  was  ours,  and  give  it  to  the  Indians?  But  the 
wrong  done  us  was  just  as  great  as  if  it  had  been  intentional  and 
premeditated.  What  did  the  Government  practically  say  to  us ?  It 
said,  we  know  that  you  have  been  the  faithful  and  persevering  agents 
of  the  Western  Cherokees;  we  know  that  they  are  mainly  indebted 
to  you  for  the  success  of  their  cause ;  we  know  that  you  have  a  lien 
upon  their  funds,  which  the  courts  and  the  Executive  have  hereto 
fore  considered  sacred ;  we  know  that  you  have  the  consent  and  re 
quest  of  the  Western  Cherokees  since  the  treaty  was  ratified,  which 
would  fully  justify  payment  to  you;  yet,  notwithstanding  all  this, 
not  a  dollar  shall  you  have !  You  have  satisfied  us  that  we  have 
grievously  injured  the  Western  Cherokees,  and  ought  to  pay  them  a 
large  sum  of  money,  and  now  we  will  punish  you  for  convincing  us 
of  the  wrong,  by  cutting  off  your  compensation !  You  shall  lose  the 


21 

fruits  of  months  and  years  of  labor,  not  for  unfaithfulness  and  fail 
ure,  but  for  your  fidelity  and  success ! 

I  do  not  hesitate  to  say,  that  if  a  private  citizen,  having  the  power, 
were  to  treat  us  just  as  the  Government  has  done  in  this  case,  the 
Courts,  would  hold  him  guilty  of  a  gross  fraud,  to  be  punished  by  sub 
jecting  him  to  payment  of  the  money,  if  not  to  a  more  severe 
penalty. 

But  it  is  said  the  treaty  and  the  proviso  were  the  law  of  the  land, 
and  binding  on  the  Q-overnment.  This  is  attempting  to  justify  one's 
own  wrong  by  pleading  his  own  wrongful  act.  Who  makes  treaties 
and  passes  laws  but  the  Government?  Cannot  treaties  and  laws  be 
made  instruments  of  wrong  and  oppression  ?  And  shall  the  Gov 
ernment  of  to-day  refuse  to  redress  wrongs  done  by  the  Government 
of  yesterday,  because  they  were  perpetrated  under  the  color  of  a 
treaty  or  proviso  which  were  themselves  a  violation  of  moral  princi 
ple  and  vested  rights?  Every  member  of  Congress  is  a  member  of 
the  Government,  and  when  he  pleads  a  wrong  done  by  his  predeces 
sors  as  an  excuse  for  not  granting  redress,  it  is  the  Government 
pleading  its  own  wrong  as  an  excuse  for  perpetuating  it. 

In  the  9th  volume  of  Peters'  Reports  of  the  decisions  of  the  Su 
preme  Court  we  find  a  case — Mitchell  and  others  vs.  the  United 
States — in  which  the  Court  assume  a  position  directly  applicable  to 
our  claim.  It  appears  that  in  Florida,  while  under  Spanish  domin 
ion,  the  Indians  were  permitted  to  sell  their  lands  to  private  purcha 
sers,  and  these  sales,  confirmed  by  the  Spanish  Governor,  conferred 
complete  titles.  After  the  annexation  of  Florida  to  the  United 
States  an  attempt  was  made  to  invalidate  these  titles;  but  they  were 
sustained  by  the  Supreme  Court.  In  their  opinion  they  hold  the 
following  language,  viz : 

"  The  Indian  right  to  the  lands  as  property  was  not  merely  a  possession; 
4  that  of  alienation  was  concomitant;  both  were  equally  secured,  protected, 

*  and  guarantied  by  Great  Britain  and  Spain,  subject  only  to  ratification  and 

*  confirmation  by  the  license,  charter,  or  deed  from  the  Governor  represent- 
4  ing  the  King.   Such  purchases  enabled  the  Indians  to  pay  their  debts,  com- 

*  pensate  for  their  depredations  on  the  traders  resident  among  them  to  pro- 

*  vide  for  their  wants;  while  they  were  available  to  the  purchasers  as  pay- 
4  ment  of  the  considerations  which  at  their  expense  had  been  received  by 

*  the  Indians.     It  would  have  been  a  violation  of  the  faith  of  the  Government  to 
'  both  to  encourage  traders  to  settle  in  the  province,  to  put  themselves  in  the  power 
'  of  the  Indians,  to  suffer  the  latter  to  contract  debts,  and  when  willing  to  pay  them 
'  by  the  only  means  in  their  power — a  cession  of  their  lands — withhold  an  assent  to 
1  the  purchase  which  by  their  laws  or  municipal  regulations  was  necessary  to  vest 
«  a  title."— 9th  Peters'  Reports,  page 458. 


22 

Our  case  is  a  much  stronger  one.  In  thut  case  there  was  certainly 
a  legal  discretion  in  the  Governor  to  confirm  the  sales  or  not,  and  the 
bad  faith  would  have  consisted  in  refusing  to  do  so  where  the  trans 
action  was  fair  and  honest.  In  our  case,  the  United  States  encour 
aged  us  to  put  our  talents  and  labor  at  the  disposition  of  the  Indians, 
by  telling  us  that,  if  we  procured  from  them  a  power  of  attorney  as 
security  for  our  compensation,  or  "a  stipulation,"  or  even  "  a  bona 
Jde  understanding"  that  we  should  receive  it  "  directly  from  the 
United  States,"  they  had  no  discretion  in  the  matter,  but  were 
Abound  to  recognise  it."  We  complied  with  this  requisition.  The 
United  States  suffered  the  Indians  to  contract  this  debt.  The  In 
dians  had  no  other  means  in  their  power  to  secure  the  service  and 
pay  for  it  than  to  give  us  an  interest  in  their  claim.  They  were 
willing  thus  to  pay  us.  The  United  States  knew  that  they  were 
willing,  and  that  it  was  impossible  for  them  to  pay  us  in  any  other 
way.  Under  all  these  circumstances,  was  it  not,  in  the 
language  of  the  Supreme  Court,  "a  violation  of  the  faith 
of  the  Government"  for  the  United  States  to  refuse  their  consent  ? 
And  was  not  the  bad  faith  more  flagrant  from  the  fact  that  the  Gov 
ernment  swept  out  of  existence  the  party  which  had  bargained  with 
us,  and  took  all  of  their  property  into  its  own  possession  ? 

(A  member  of  the  committee  called  Mr.  Kendall's  attention  to 
the  fact,  that  a  committee  had  been  raised  by  the  Western  Cherokees 
when  the  money  was  sent  out  for  distribution,  for  the  purpose  of  as 
certaining  their  debts  and  deciding  what  should  be  paid,  and  inquired 
what  bearing  that  was  supposed  to  have  on  the  claim  now  presented?^ 

Mr.  Kendall  replied,  none  whatsoever.  There  was  no  authority  in 
the  treaty  or  the  law  for  constituting  such  a  committee,  and  every 
dollar  paid  upon  their  award  was  paid  in  violation  of  the  proviso  of 
Congress,  There  was  as  little  authority  to  pay  upon  the  award  of 
that  committee  as  upon  the  order  of  the  Secretary  of  the  Interior. 
Only  one  claim  out  of  many,  I  believe,  was  allowed,  and  that  was 
Colonel  Stambaugh's,  our  co-agent,  who  procured  himself  to  be  made 
secretary  of  the  committee. 

True  it  is,  that  my  Nephew  and  Partner,  John  E.  Kendall,  went 
out  first  to  New  Orleans  and  then  to  the  Cherokee  country  with  the 
view  of  availing  himself  of  any  proper  means  and  occasion  to  se 
cure  our  compensation.  His  instructions  were,  first,  if  practicable, 
to  enjoin  our  money  in  the  hands  of  the  Agent  at  New  Orleans 
where  he  was  to  recievp  it,  or  in  Arkansas,  and  failing  in  that,  to 


23 

visit  the  Cherokee  country  and  be  governed  by  circumstances.  Lest, 
however,  this  almost  hopeless  effort  should  be  construed  to  prejudice 
our  claim  on  the  government,  it  was  preceded  by  a  solemn  protest 
in  the  following  words  extracted  from  a  letter  to  the  Secretary  of 
the  Interior,  viz : 

"  And  in  view  of  the  wrong  now  about  to  be  consummated,  unless  preven- 
'  ted  by  your  prompt  interposition,  it  will  not  be  deemed  amiss  in  me  most 
'  respectfully  to  repeat  the  protest  heretofore  made  against  being  sent  to  the  Chero, 
«  kee  country  to  collect  moneys  which  by  contract  are  payable  at  Washington,  and 
'  again  give  notice  that  we,  the  counsel  of  the  Western  Cherokees,  look  to  our  Got?. 
'  ernment  for  the  payment  of  our  claims  and  of  all  expenses,  losses,  and  damages 
'  which  have  been  or  may  be  occasioned  to  us  by  its  own  wrong  in  this  behalf." 

The  Agent  refused  to  obey  an  injunction  if  obtained,  and  after 
an  expenditure  of  seven  or  eight  hundred  dollars,  much  suffering  by 
sickness  and  the  loss  of  several  months'  time,  my  Nephew  returned 
to  Washington  wholly  unsuccessful.  To  consider  this  effort  as  im 
pairing  our  claim  on  the  government,  is  not  only  to  disregard  our 
solemn  protest,  but  to  make  our  loss  of  money,  time  and  health, 
brought  upon  us  by  the  injustice  of  the  government,  an  excuse  for 
making  that  injustice  perpetual. 

So  keenly  have  I  felt  the  conduct  of  the  government  towards  us 
in  this  matter,  that  I  have  sometimes  declared,  that  I  would  con 
tinue  to  petition  Congress  as  long  as  I  live,  if  redress  be  not  sooner 
granted,  and  in  my  will  make  it  the  duty  of  my  children  to  petition 
also  during  their  natural  lives.  1  should  never  have  resorted  to  the 
occupation  of  an  Agent  had  I  not,  for  faithfully  doing  my  duty  to 
my  government  in  one  of  its  Departments,  been  confined  to  the 
prison  limits  of  the  County  of  Washington.  Nearly  all  my  earn 
ings  during  thatperiod  of  oppression,  are  tied  up  in  this  case  through 
the  action  of  that  very  government,  fidelity  to  whose  interests 
brought  that  oppression  upon  me.  I  know  these  considerations 
have  nothing  to  do  with  the  law  of  the  case ;  but  I  beg  every  mem 
ber  of  the  Committee  to  make  the  case  his  own,  and  then  say,  if  he 
can,  that  a  government  which  has  thus  treated  him,  does  not  owe 
him  prompt  and  ample  reparation. 

In  conclusion  I  have  to  suggest,  that  the  facts  being  admitted  and 
the  only  question  being  one  of  law,  we  will  be  perfectly  content  to 
have  that  question  submitted  to  the  Courts  with  provision  that  the 
money  shall  be  paid  if  the  decision  shall  be  in  our  favor.  Authorize 
us  to  file  a  Bill  in  the  Circuit  Court  in  this  District,  setting  forth  the 
facts  and  presenting  the  point  of  law ;  let  the  U.  S.  District  Attor 
ney  defend  on  the  part  of  the  United  States,  and  give  to  both  par 
ties,  a  right  of  appeal  to  the  Supreme  Court ;  and  if  that  Court 
decides  against  us,  we  will  trouble  Congress  no  more,  but  give  up 
our  claim  forever. 


